Title: Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - Executive Summary
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Title: Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - Executive Summary
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Publisher: Frank E. Maloney
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Abstract: Richard Hamann's Collection - Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - Executive Summary
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 1
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Full Text

















LEGAL RAMIFICATIONS OF
IMPLEMENTATION OF THE
INTERIM ACTION PROGRAM
IN GOLDEN GATE ESTATES,
COLLIER COUNTY, FLORIDA






Report To The
Collier County Board
Of Commissioners



From



Frank E. Maloney
Attorney At Law


.~-----.----- ~--~---~. ~---.^~-:~-~c~e~*cST~IerPIPr~


"-1- -- ; ---i~L1- .__- ii









LEGAL RAMIFICATIONS OF IMPLEMENTATION OF THE INTERIM ACTION
PROGRAM IN GOLDEN GATE ESTATES, COLLIER COUNTY, FLORIDA

FRANK E. MALONEY, Esq. tOJ, J &
RICHARD G. HAMANN, Esq. i 9
BRAM D. E. CANTER, Esq.

tlk-' TABLE OF CONTENTS

EXECUTIVE SUMMARY i

4 INTRODUCTION 1

1t THE LEGAL EFFECT OF FLOODING RESULTING FROM 7
RAISING WATER LEVELS

H II. MEASURE OF COMPENSATION IF A "TAKING" IS FOUND 34

IIV. POSSIBLE ESTOPPEL EFFECT OF COLLIER COUNTY'S 40
APPROVAL OF SUBDIVISION PLATS AND ACCEPTANCE
S OF THE CANAL SYSTEM

V. THE COUNTY'S DUTY TO MAINTAIN ROADS 50

S.VI. TYPES OF LEGAL ACTION THAT MIGHT BE BROUGHT 57
AGAINST THE COUNTY BY GAC

,. n. AVAILABILITY OF CLASS ACTIONS AGAINST COLLIER 65
COUNTY

SVIII. AVAILABILITY OF DECLARATORY RELIEF TO COLLIER 76
COUNTY

IX. PERMITS REQUIRED FOR IMPLEMENTATION OF INTERIM 83
ACTION PROGRAM

X. WHETHER SFWMD, BY ISSUING PERMITS FOR IMPLEMENTATION 86
OF THE INTERIM ACTION PROGRAM, WOULD BECOME LIABLE
FOR ANY "TAKING" THAT MIGHT RESULT

S. XI. APPLICATION AND LEGAL SIGNIFICANCE OF CHAPTER 78-85 88
LAWS OF FLORIDA, (POPULARLY KNOWN AS THE 1978
"TAKING" ACT)

"-II. WHETHER THE CONSENT DECREE AGAINST GAC ISSUED BY 93
THE FTC IN AUGUST 1974 COULD BE INVALIDATED
S BECUASE OF THE COMMISSION'S FAILURE TO PREPARE AN
S ENVIRONMENTAL IMPACT STATEMENT

111II. CONCLUSION AND RECOMMENDATIONS 113

M



L____________________









6 : fe
:. re,
S;": I. INTRODUCTION

During the 1960's and early 1970's the Gulf American Corporation, now
iftAgCorporation (GAC), subdivided about 173 square miles of undeveloped
4*tahd- in Collier County and sold it as lots in "Golden Gate Estates" (GGE).
|4roximately 200 miles of canals were excavated to drain the land and
ide the fill necessary to build hundreds of miles of roads. Sub-
division of the land and changes in its zoning were approved by the
liCollier County Board of County Commissioners. Over 50,000 people, in
.lltfy parts of the world, were sold residential lots in the project.
o flver, except for a relatively small portion of the northwest section
meiAre several hundred homes exist, very few residences have been built.

11 Prior to construction of canals and roads, the area was vegetated
%Fj low pineland and cypress communities similar to those found in other
trts of the Big Cypress Swamp. Much of the area was regularly inundated
-.by several feet of water during the rainy season. Under redevelopment
conditions, surface water was present for many months each year. The
tter areas in the southern part of the project were normally flooded
pila depth of about two feet for five to seven months of the year. The
irer "Golden Gate Highlands" in the northwest portion flooded to a
Iium depth of about 7 inches of water and remained wet for 3 to 4
'oths of the year. This water protected vegetation from fire, moderated
temperatures and humidified the local atmosphere, thus allowing a unique
unity of plants and animals to thrive. It also recharged shallow
deep aquifers.

SMuch of the water moved slowly seaward through strands of cypress.
the edge of land it created an extremely productive estuary by diluting
Mter and contributing nutrients to the saltmarsh and mangrove com-
kties. Proper salinities were maintained by the slow, steady infusion
freshwater from the inland cypress swamps of Golden Gate Estates.
id fluctuations in salinity were prevented by the slowly draining head
afresh water.

Sr Construction of the Golden Gate Estates canal system has had devastat-
impacts on the environment described above. Surface and shallow
dters are rapidly collected, channelled and transported from the
rior swamps directly to the open waters of the estuary. The duration
flooding has been reduced and, most importantly, the area is dried out
more thoroughly during the dry season. Furthermore, the drying
*extends beyond the area of Golden Gate Estates. Water is drawn
the Corkscrew Swamp and farmlands to the north and from the Fahkahat-
Strand.

'opic in this executive summary is covered in more detail in the cor-
.ng section in the body of the attached report. Supporting documenta-
Is omitted from the summary, but all statements made in it are fully
ed in the appropriate sections of the report. To locate individual
as; please refer to the Table of Contents which employs the same
dings as those used herein.


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Executive Summary

Plant and animal communities, both within and beyond the borders of
len Gate Estates have been adversely affected by the drying. Extensive
lands to the north have been excessively drained. Excessive drainage
dramatically increasing the incidence of destructive fires, both within
;apd beyond its borders.

tJo#y decreasing the recharge of groundwaters, the canals are seriously
t dening the adequacy of regional water supplies. All potable water
the region is drawn from groundwater. The possibility of salt water
rusion has also been increased, threatening plants, animals and water
Jies.

SPerhaps the injury of greatest economic importance has been the
graedation of the estuaries into which the canals discharge. The flow
,nutrients to saltmarsh and mangrove communities has been "short
,l united" by the canals. Great pulses of freshwater are discharged
r rainy periods. There is little flow during dry periods. Rapid
Iactuations in salinity--from very salty to very fresh and back again--
Aaur to the detriment of such marine life as snook, spotted sea trout,
rimp and oysters, which are the basis for major local seafood industries.

Ironically, despite the enormous harmful impacts of the canals, they
Meovide inadequate drainage to allow development of the area. Water
*deths of 7 inches in the lower areas of the "Highlands" and 24 inches
4#. the southern areas are still reached briefly during heavy rain periods
Snd flooding may persist for two and three months, respectively.

S The proposed Interim Action Program is designed to reduce the harm-
"fWl impacts of the canal system until a permanent solution can be
A4veloped and implemented. It has two main features. First, a natural
drainage divide would be restored by the installation of earth plugs
t..grevent waters, on the eastern side of the project, the Fahka Union
t*nal drainage area, from draining out the western side through the
Iolden Gate Canal into Naples Bay. Second, several earth plugs would be
l stalled and existing weirs would be raised in the Fahka Union canal
id*ainage area to retain water for longer periods of time and divert some
:of this water into the Fahkahatchee Strand. There are alternative
rightsts to which the weirs may be raised. The first alternative is to
risee them to an intermediate height of two feet. The second alternative
Sis to raise them to ground level.

f, Implementation of the intermediate level alternative would decrease
yearly runoff through the Fahka Union canal by approximately 50% and
w uld decrease the rate of peak discharge by 35%. It would raise ground-
water levels by 1 to 2 feet. Peak wet season flood levels would not be
increased, but their duration would be extended from a few weeks to one
month.

Implementation of the ground level alternative would virtually
eliminate the discharge of runoff through the Fahka Union canal. Ground
water levels would be raised 2 to 4 feet. The duration of flooding
would be increased an additional few weeks and flood peaks would be
increased by up to 1 or 2 feet, thus increasing the incidence of flooding
in some areas.


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Executive Summary


II. THE LEGAL EFFECT OF FLOODING RESULTING FROM RAISING WATER LEVELS

Local governments have two major powers of significance to any
..discussion of reflooding. One, the power of eminent domain, is the
,right to seize property and place it in public ownership. Constitu-
tional limitations on this power require that the seizure be for a
"public purpose" and that "just compensation" be paid its owner.

Another is the police power, which is the power of government to
take action itself or to regulate the actions of others for the purpose
Spf protecting the public health, safety, morals or welfare. Exercise
Aof the police power is also subject to constitutional limitations.
Citizens are protected by the constitutional right to due process of
law against government action pursuant to the police power that is
unreasonable, arbitrary, capricious or discriminatory. However, if
s ..#an exercise of the police power is reasonably related to attainment
Sof a legitimate purpose and the means used are reasonable, it is valid.
, Furthermore, there is a judicial presumption of validity.

The "taking" issue arises when an owner of property claims that
a government action has had the practical effect of appropriating his
property for the public's benefit. In essence, the owner asserts there
has been an exercise of the power of eminent domain, but without just
compensation. Such action is popularly termed a "taking."

A taking can occur in one of two ways: (1) the government may
physically invade private property or otherwise interfere with the use
, of it to such an extent that the owner is, in effect, ousted. (2) regu-
lations enacted under the police power may interfere with the owner's
use of the property to such an extent as to be the equivalent of an
appropriation of the property for the public's benefit.

If a court finds that government action has caused a taking of
Private property, it has two available courses of action. First, it
Smay enjoin or invalidate the action, thereby removing the burden from
the landowner. Alternatively, it may order the institution of eminent
domain proceedings to compensate the owner for the property that has
Been taken.

iIt seems clear from an examination of the flooding cases decided by
federal and Florida courts that government action which results in the
flooding of land may constitute the taking of an interest in that land
if the following factors are present:

(1) water levels have been raised above their natural levels;

I (2) land was flooded that was not normally subject to flooding
under natural conditions; and

(3) the flooding substantially interfered with an existing use
of the land.

However, it is impossible to state with certainty whether or not


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Executive Summary


flooding caused by government action that does not meet these criteria
would be a taking. The two alternatives of the Interim Action Program
seem to be distinguishable on each point from those cases which have
been decided against the government. Neither alternative would raise
Water levels above the natural flood levels to which the land had been
subject for centuries prior to excavation of the canals. The inter-
meddiate level alternative would not raise the levels of existing flood-
ing at all. It would merely extend their duration for a month. The
ground level alternative would extend the duration of flooding and
raise peak flood levels one or two feet above the level they presently
reach under the same condition of rainfall and existing water. Since
it"'may be assumed the land is presently subject to flooding from heavy
rainfall, one may describe the effect of the ground level alternative
as increasing the incidence of flooding to an apparently unknown extent.

The following arguments could be made, based on the cases analyzed
in this report, to support the proposition that implementation of the
Interim Action Program would not cause a taking:

(1) There is a right to be free from government-caused flooding
only if water levels are raised above their natural levels.
Neither alternative of the Interim Action Program would
raise water levels above their natural levels. Therefore,
no right of property owners would be injured.

S (2) Even if it is assumed that landowners have a right to the
present water levels as artificially lowered by the canals,
the Interim Action Program would cause insufficient harm to
constitute a taking since the land is already subject to a
substantial incidence of flooding. Collier County would be
liable for a taking rather than mere damages only if the
increment by which water levels is raised interferes with
an owner's use of property to such an extent that its value
is substantially diminished to the point of being appropriat-
ed. Since the affected land is presently subject to flooding
and its use is thereby naturally impaired, some additional or
increased incidence or duration of flooding would not result
in such an appropriation.

(3) Raising water levels is a legitimate exercise of the police
power, reasonably necessary to protect public health and
welfare from the damages caused by the present drainage
system. Although property values might be diminished and
the use of property interfered with, the extent would not be
sufficient to constitute a taking in view of the necessity
of police power action under the circumstances.

A distinction is made in taking cases between action which is designed
to secure a benefit for the public and action which is designed to prevent
ior abate harm to the public interest. If governmental action is intended
'to secure for the public a benefit that it does not presently enjoy, a
Court is likely to hold that the affected landowner must be compensated for
B the value of property which has been appropriated for the public's use.
On 'the other hand, if the government takes action which is intended to


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Executive Summary

prevent or abate an injury or harm to the public interest caused by a use
qf land, depreciation of a landowner's economic interest rarely constitutes
a taking.

The canals of Golden Gate Estates are having demonstrable adverse
impacts on private land use and important public interests. Since the
Proposed Interim Action Program is reasonably adapted to reducing these
f. l(pjful impacts, a strong argument can be made that it lies within the
~: cope of permissible police power action.

Those who are responsible for making the ultimate decision in this
situation should bear in mind, however, that there is no authority
directly supporting the validity of reflooding. If water level's are
raised in Golden Gate Estates it is possible that a court would rule
That an interest in the affected property had been taken and the County
O must pay compensation for it. The precise issue is undecided. There is
Sno indication in the cases that any unit of government has previously
recognized the harm caused by drainage works such as those of Golden Gate
States and sought to correct the problem.

| A court might conclude the proposed Interim Action Program places
I uch an inordinate burden on private property owners that they should
'e compensated. The question might well be resolved by balancing the
Sneed for an exercise of the police power against the magnitude of the
i burden imposed on private property interests. Therefore, if litigation
develops, it is critically important that the adverse impacts of the
Present canal system be fully explained and proven to the court. De-
I tailed testimony by highly qualified experts will be necessary for
i success.

III. MEASURE OF COMPENSATION IF A "TAKING" IS FOUND

Article X, Section 6(a) of the 1968 Florida Constitution provides
that "no private property shall be taken except for a public purpose and
With full compensation therefore paid to each owner." Property owners
may seek compensation for a taking through an action for inverse con-
: demnation.

S The general rule as to the measure of damages to be paid for con-
damned property is that the compensation should be equal to the fair
market value of the property at the time of the appropriation. The
fair market value is the amount a willing purchaser, under no compulsion
to buy, would pay for the property.

The Florida courts generally will not allow speculative values to
be considered in assessing the amount of compensation to be paid for in-
verse condemnation. Development potential must be reflected in the
present value of the property sought to be appropriated to be properly
considered in determining the amount of compensation to be paid. Any
application for a permit to develop a lot in an area of Golden Gate
Estates that would be affected by the Interim Action Program proposals
would probably already be subject to a number of regulatory obstacles,
such as the discouragement of fill placement in flood prone areas and
the prohibition of septic tanks in areas that are poorly drained. Thus,
there could be a significant level of excludable speculation in the


s"'






Executive Summary


claims of Golden Gate Estate landowners as to the development potential
(and thus value) of their property.

If a court finds that a taking has occurred in Golden Gate Estates,
it will most likely find that only a partial interest has been taken,
sash ,as destruction of access, When less than the entire fee is taken,
the measure of damages would be the diminution of fair market value
caused by the loss of the partial interest. Enhancement in the value
of the remaining property, should that occur, may be set off against
any compensation that is otherwise due.


IV.. POSSIBLE ESTOPPEL BASED ON COLLIER COUNTY'S APPROVAL OF
SUBDIVISION PLATS AND ACCEPTANCE OF ROADS

S, Because the Collier County Commission approved the subdivision plats
of Golden Gate Estates and accepted dedication of most of the canal and
road system, the question is raised as to whether the County is thereby
stopped from raising water levels. An estoppel arises when one is
:preluded by law from speaking against his own act or deed. There are
:tree types of estoppel,but equitable estoppel, sometimes called estoppel
by representation, is the type of estoppel which is most likely to be
asserted in any attempt to prevent the raising of water levels in the
Golden Gate Estates canal system.

In order to raise an equitable estoppel it is necessary to show
that: (1) a representation was made by the party to be stopped to the
party claiming the estoppel as to some material fact, which is contrary
ItpEthe condition of affairs the stopped party is asserting; (2) the
party claiming the estoppel relied upon the representation; and (3) the
party claiming the estoppel changed his position to his detriment as a
result of his reliance on the representation.

The question of whether the doctrine of estoppel could be applied
*iginst Collier County's attempt to implement its Interim Action Program
ftser accepting dedication of streets and canals in Golden Gate Estates
iat approving the platting of the area is a difficult one because no
Florida case has addressed the issue directly nor has our investigation
of other jurisdictions turned up any cases involving a similar factual
situation. In several states, equitable estoppel is never applied against
t|i exercise of the police power by local governments. In many other
jurisdictions, including Florida, it is only applied in exceptional cir-
cumstances and only when the police power will not be significantly im-
paired. While the evidentiary showing required to establish the excep-
tional circumstances that will justify an estoppel of the County have
never been elaborated into general guidelines by a Florida court, the
cases do indicate that the public interest sought to be protected would
have to be a small one and the detrimental reliance of the private
plaintiff would have to be quite substantial.

With the numerous technical reports available to document the
serious environmental problems in Golden Gate Estates attributable to
its canal and road system, it appears unlikely that a court would hold


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Executive Summary


that the County is stopped to prevent further environmental degradation
because of a plat approval and the acceptance of canal and road dedications
many years before the problems were foreseen. Additional support for the
County's proposed action can be found in the developing legal proposition
that where a "peril" to the public health, safety and welfare is threat-
lned, equitable estoppel cannot be applied to prevent remedial action by
& governmental entity.
r.

V. THE COUNTY'S DUTY TO MAINTAIN ROADS

fp. There are no clear precedents regarding whether the County has a
duty to maintain the roads in Golden Gate Estates. There is statutory
kithorization for the abandonment of roads. Whether the County ceases
to maintain roads and allows them to wash away or whether the County
fepressly abandons them, the issue will arise as to whether landowners
K st be compensated for the resulting loss of access. The most recent
tbses indicate that whenever ingress or egress is blocked or materially
#bridged, compensation must be paid. However, the unique circumstances
pensent in Golden Gate Estates make it distinguishable on several points
from the cases examined.

bi It is apparent many of the roads in Golden Gate Estates are not
be6ng used for access and it will be extraordinarily expensive to main-
Cain them. It may be possible to at least downgrade such roads to
#tavide access by four wheel drive vehicles. It could then be argued
*that access had not been destroyed, but merely made less convenient,
as necessitated by the circumstances. Since the right of access is a
property right, like other property rights it should be subject to some
Agree of diminution when necessary to protect the public health, safety
4totwelfare. In assessing whether a diminution of access constitutes a
-*aking, a court should consider the extraordinary waste of public funds
*kht would be necessary to maintain the present level of access, the
adverse environmental impacts of the road system, and the fact that so
few landowners are actually using the existing roads for access. Although
tVe courts seem sometimes to have been overly protective of access rights,
ftey may be sensitive to the distinguishing facts with respect to the
Aenads in Golden Gate Estates.

ra If it is decided to maintain the roads, the County may wish to
*ttablish a special road district for the purpose of paying for construc-
*' ffiWractical under the requirements set forth in Florida Statute 336.63.



VI. TYPES OF LEGAL ACTION THAT MIGHT BE BROUGHT
AGAINST THE COUNTY BY GAC

s' If a court should find that sovereign immunity does not protect the
~&tunty from an action for flooding such a suit would likely be based on
triesis of trespass or nuisance. The trespass cause of action protects
ibltPerson's right to the exclusive possession of his land. Causing water


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Executive Summary


to invade a person's land may constitute a trespass. A cause of action
f6t-a private nuisance arises when a person's right to the reasonable use
ndl:enjoyment of property is interfered with. If flooding interferes
044th such a right it may also constitute a nuisance. In either case,
j-S-anding to assert the right depends upon ownership and possession of
-4r'land. Therefore, GAC, like other landowners, would have standing
.~braise these common law claims only with respect to property that it
.*riam, unless the requirements for a class action suit are met and such
Lsuit is filed.

At common law, however, suits claiming damages for trespass or
-inevate nuisance cannot be brought against the State because of the
(tarine of sovereign immunity. Sovereign immunity still applies in
loerida except to the extent it has been waived. The Florida Tort Claims
a4t waives sovereign immunity and makes the County liable for damages
Caused by the wrongful acts of its employees in situations where a
.private party would be liable. However, an individual cannot be held
#abile for exercising the legislative or quasi-legislative functions of
ipmwrnment. A decision by the Board of County Commissioners to implement
*h. proposed Interim Action Program would appear to be such a function.
it logically follows that since an individual would not be liable for
making such a decision, then neither would the County. It can therefore
...targued that sovereign immunity would continue to bar tort liability
.bsC=deliberately raising water levels. However, no court has addressed
bkis issue directly. Under the Florida Tort Claims Act, the County's
ability, if any, would appear to be limited to $100,000.

he. A cause of action for flooding may also be based on the theory of
ftverse condemnation. In that case the County would not be protected
dBom suit by sovereign immunity because the taking of property without
4ust compensation is constitutionally prohibited. As in trespass and
q~irvate nuisance actions, standing to assert this right is available
only to the owner of the property right allegedly taken.

; Holders of contract rights are also constitutionally protected against
ithe impairment of those rights by units of government such as Collier
.Iunty. Standing to invoke the constitutional prohibitions against
a upairment of contract is available to parties to the contract and third
qarty beneficiaries of it. However, all contract rights are subject to
reasonable regulation under the police power. If police power action is
reasonably adapted to accomplishing a legitimate purpose, it is valid
t4espite its impact on contractual obligations. It would therefore appear
that an action by GAC on the theory that its contracts with its purchasers
have been impaired would be unsuccessful.


S VII. AVAILABILITY OF CLASS ACTIONS AGAINST COLLIER COUNTY

S As previously explained, GAC and individual landowners generally have
standing only with respect to property owned by them. There is the
possibility, however, that several claims may be joined in a class action.
Class actions, both in Florida and federal courts, require common
interests of many persons constituting a class so numerous as to make


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Executive Summary


it impracticable to bring them all before the court. Because the actual
effect that will arise from raising water levels in the canal system
cannot e known precisely beforehand, predictions of the viability of
resulting class suits are difficult. In the federal courts, a claim of
jurisdiction based on diversity of citizenship would face the initial
obstacle of meeting the $10,000 minimum for each individual member of
the class. If this amount is alleged, however, the court will not
dismiss an otherwise valid class suit unless there appears to be a legal
certainty that the claim is insufficient or made in bad faith.

& The case law in Florida and the federal court system does not present
S consistent guidelines for determining whether the necessary community of
interests can be established in a class action brought by Golden Gate
S Estate landowners. In deciding such questions, the courts seem to be
.; guided largely by considerations of fairness, convenience and due process
in the particular circumstances of each case. In Florida, it appears
that the existence of a public entity in the lawsuit is a significant
factor and tends to increase the likelihood that the class action will be
Si.rmitted. The reported cases, however, do not involve factual situations
) Jhse enough to those presented here to formulate clear legal analogies.

Perhaps the most that can be said about Florida law in this area is
that under circumstances such as will probably arise in Golden Gate
Estates, where some issues are common and some unique to individual
landowners, the determination of the validity of the class suit will turn
on the court's sense of the predominant issues. If the case involves
Numerous separate damage claims and possible defenses with no claim
being clearly shared pecuniarily by all of the members of the class, the
court will probably dismiss the action as improper. However, if a court
can find an important common issue which affects all of the members, the
diversity of the damage claims might be ignored and the class action
permitted.

The possible estoppel of the County is an issue that appears to
affect each potentially injured landowner within Golden Gate Estates.
However, every other claim that might arise from raising water levels
could be described as separate and distinct. If the County wished to
avoid a class suit, it should aver that the claims of the landowners
are predominantly individual in nature, involving separate damages,
privileges, and defenses. The same approach could be effective in the
federal courts, where the question of community of interests is answered
by reference to the same factual considerations.

VIII. AVAILABILITY OF DECLARATORY RELIEF TO COLLIER COUNTY

The Florida Statutes expressly authorize parties who are uncertain
of their legal rights or duties to seek a declaratory judgment in circuit
court settling these questions. To obtain a declaratory judgment, the
following elements must be clearly shown:

(1) a bona fide, actual, present, practical need for the
declaration;

(2) the declaration deals with a present, ascertained or


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i Executive Summary

Sascertainable state of facts;

(3) some immunity, power, privilege or right of the complaining
: party is dependent upon the facts or the law applicable to
'-" the facts;

(4) there is some person or persons who have, or reasonably
may have an actual, present, adverse and antagonistic interest
in the subject matter, either in fact or law;

(5) the antagonistic and adverse interests are all before the
.. i court by proper process or class representation; and

(6) the relief sought is not merely the giving of legal advice
by the courts or the answer to questions propounded from
curiosity.

Since the County has a definite plan which it desires to implement,
but is uncertain of the potential liability it creates, a declaratory
: judgment would seem appropriate. Numerous cases discussed in the body of
this report support the availability of such relief in similar situations.
Ample precedent exists to support an inquiry on the following matters:

S(1) Is the County stopped to implement the Interim Action
Program because it has approved the plat of Golden Gate
Estates and accepted dedication of streets and canals
that may be affected by the Program's proposals, or do
changed circumstances, potential "peril" and the County's
duty to protect the public health, safety and welfare
overcome the estoppel argument?

(2) May the County, through exercise of its police power, im-
plement a program designed to reverse overdrainage and
environmental degradation within Golden Gate Estates for
the purpose of restoring and protecting the natural water-
shed without paying compensation to landowners whose lands
may be flooded more frequently or for more extended periods
of time?

Perhaps all of the issues addressed in this report could be outlined
specifically for the court. The two that appear above, however, broadly
state the essential legal questions that face the County. It cannot be
overemphasized that the success of a complaint for declaratory relief
may turn on the comprehensiveness of the factual allegations set out in
the complaint. The County must exploit the numerous technical reports
and documents which describe the ecological harm already caused and
threatening to continue or worsen. A court would then be more likely to
uphold the County's attempt to abate or reduce these harmful effects
caused by the Golden Gate Estates canal and road systems as amply
justified and necessary for the health and welfare of Collier County's
citizens, and permit the proposed action without resort to eminent
domain.


The complaint should include a full, detailed and complete description


ss~







Executive Summary


of the proposed Interim Action Program, the impacts it will have on
affected property, and the reasons the County is seeking to implement
it. In addition, the County must be prepared at the appropriate time
to prove those allegations with the best available expert testimony.


IX. PERMITS REQUIRED FOR IMPLEMENTATION OF THE INTERIM ACTION PROGRAM

Permits will probably be required from the South Florida Water
Management District, the Florida Department of Environmental Regulation
and the U.S. Army Corps of Engineers. Therefore, the County should
contact each of these agencies prior to making a final decision on the
Program so their concerns may be identified and resolved.


X. WHETHER SFWMD OR DER, BY ISSUING PERMITS FOR IMPLEMENTATION OF THE
INTERIM ACTION PROGRAM, WOULD BECOME LIABLE FOR ANY "TAKINGS" THAT
MIGHT RESULT?

The question has arisen whether the South Florida Water Management
District or the Department of Environmental Regulation or the Corps of
Engineers, as permitting or funding agencies, would be liable for any
takings that may result from implementation by the County of the Interim
Action Program. Although no Florida cases have addressed such an issue,
a decision by the U.S. Supreme Court in an analogous case indicates that
the builder and operator of the facility which causes the taking, rather
than the agency which permits and funds the construction of it, is liable
for the payment of compensation if required.


XI. APPLICATION AND LEGAL SIGNIFICANCE OF CHAPTER 78-85, LAWS
OF FLORIDA (THE SO-CALLED 1978 PROPERTY RIGHTS ACT)

There is a possibility that a law recently enacted by the Legislature,
Ch. 78-85, might make the South Florida Water Management District or the
Department of Environmental Regulation liable for the payment of compen-
sation if it issued a permit authorizing the Interim Action Program. The
new act allows a person who is "substantially affected by a final action
of any agency with respect to a permit" to appeal the action to a circuit
court solely on the question of whether a taking has resulted. If the
court finds the action has resulted in a taking, then it must remand the
action to the agency. The agency then may either pay compensation, issue
the permit or modify the permit to avoid a taking. A landowner whose
property would be affected by implementation of the Interim Action Program
might invoke Ch. 78-85 to obtain an immediate review of the action of
SFWMD or DER in issuing the necessary permits.

On the other hand, it is arguable that Ch. 78-85 applies only to
situations where the action on a permit might result in a taking by the
permitting agency of the permit applicant's property rather than a taking
by the recipient of the permit. One thing which seems clear, however, is
that the County would not become liable in this instance under Ch. 78-85,
because the act only applies to the issuance of permits under specified


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Executive Summary


Florida statutes, and the County is not issuing any such permits in this
cse.


XII. WHETHER THE CONSENT DECREE AGAINST GAC ISSUED BY THE FTC IN AUGUST,
1974 COULD BE INVALIDATED BECAUSE OF THE COMMISSION'S FAILURE TO
6, PREPARE AN EIS.

An action to invalidate the consent order against GAC and compel
the Federal Trade Commission to prepare an environmental impact statement
oa.a condition to any reissuance of that order would appear to have a
good chance of success. Although the FTC has promulgated a rule exempt-
*ng such orders from compliance with the NEPA requirements, the validity
of that rule is doubtful. The National Environmental Policy Act of 1969
requires the preparation of an environmental impact statement for all
major Federal actions significantly affecting the quality of the human
environment. This duty is mandatory and must be fulfilled to the fullest
extent possible. There is no statutory exemption in this instance and
no clear and unavoidable conflict between NEPA and the requirements of
any statute that would be sufficient to imply such an exemption. The
FTC might raise the equitable doctrine of laches as a defense, but it is
not likely to prevail because the FTC probably would not be able to show
that the necessary prejudice to accomplishment of its statutory respon-
sibilities had arisen from the delay in filing suit.

In addition, the EIS requirements would appear to apply to the
amended consent order to be issued by the FTC if it can be shown that
the amendment constitutes a major federal action signi icantly affecting
the human environment. Both the original consent order and the amended
consent order are enforcement devices involving prosecutorial discretion
on the part of the FTC. As such, judicial review of their substantive
content would not be available upon the request of the County. Judicial
review of the refusal to follow NEPA's procedural requirements would be
available, however.
XIII. CONCLUSIONS AND RECOMMENDATIONS

(1) In researching the legal issues that are implicated by Collier
County's Interim Action Program proposals, the virtual absence of case
law involving similar or analogous factual circumstances was an obstacle
to the development of many conclusions or predictions with respect to the
law's probable application to Collier County, What was accomplished,
however, was the articulation of the legal arguments that would be
important to the resolution of these issues in the event of litigation.

If either of the alternatives of the proposed Interim Action Program
is implemented, there is a possibility the County would be required to
pay compensation to affected landowners measured by the diminution in
value of their property. On the other hand, there are strong arguments
in favor of allowing the County to abate the harmful impacts of the
present canal system without having to pay compensation. Because the
intermediate level alternative would affect fewer properties and would
have less of an impact on the use of affected properties, the potential
liability of the County is obviously less than for the ground level


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Executive Summary


alternative. But since there is no legal precedent regarding the validity
of restoring water levels under such circumstances as those present in
Golden Gate Estates, no certain prediction can be made regarding either
alternative.

It is therefore recommended that the County consider seeking a
declaratory judgment with respect to whether it would be liable for
raising water levels in Golden Gate Estates.

(2) It is further recommended that the County consider imposing a
moratorium on development in at least a portion of the Golden Gate
Estates tract. Such a moratorium would not only preclude development
with adverse environmental impacts from occurring, but would also pre-
clude development that is inconsistent with whatever final, more environ-
mentally acceptable plan of redevelopment is adopted by the County. If
additional development in the affected area is not precluded, the County
could find itself in the position of having to buy certain developed
properties or risk having to pay compensation for interference with
rights to their ownership and use. It should be noted, however, that
the legal viability of this alternative has not been analyzed in this
report.

(3) Permits will probably be required from the South Florida Water
Management District, the Florida Department of Environmental Regulation
and the U.S. Army Corps of Engineers. Therefore, the County should
contact each of these agencies prior to making a final decision on the
Program so their concerns may be identified and resolved.

(4) The County should also explore the possibility of immediately
imposing restrictions throughout the Golden Gate Estates area to ensure
that future development is consistent with restoration plans. Thus, for
example, the County might require private roads, dwelling units and in-
dividual sewage treatment systems to be elevated to such a height that
raised water levels would not interfere with the use of such facilities.
In view of the area's susceptibility to flooding, such restrictions are
not unreasonable or unwarranted, whatever happens in the future. A
discussion of other regulatory mechanisms available to the County appears
in the Phase I Golden Gate Estates Redevelopment Study, Collier County,
Florida, of June 1976.

(5) Since the Federal Trade Commission appears to have been required
by NEPA to prepare an environmental impact statement before issuing its
s 1974 consent order against the Gulf American Corporation, a lawsuit to
invalidate the order and require the preparation of an EIS before issuing
*. another seems likely to succeed. Therefore, the County should consider
whether the consent order is sufficiently harmful to justify the expense
( of litigation. If it is decided to undertake such litigation, the
possibility of seeking assistance from an organization such as the Natural
Resources Defense Council or the Environmental Defense Fund with expertise
and an interest in NEPA enforcement actions might also be considered.

| (6) Expert testimony and factual data related to the hydrology and
ecology of Golden Gate Estates and the Big Cypress watershed will be


S-xiii-
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Executive Summary


essential to:

(a) establish the reasonable necessity of Collier County's
Interim Action Program and future redevelopment proposals,

(b) provide data from which diminution of value and loss of
access determinations can be realistically calculated
(e.q., to show that an alleged taking due to flooding did
Snot occur because the lands already were subject to flooding), and

(c) develop the data necessary to implement future redevelop-
ment plans and long-range water resource management.

The County should therefore take steps to compile existing information and
develop new information on county water resources within Golden Gate Estates.
This information should be developed in such a manner as to assure its
admissability and credibility if needed in future litigation.







































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